Unfulfilled inheritance expectations

In some cases, the best-meaning actions of both the heirs and their ancestor can lead to unexpected and unwelcome results.

WHEN there are expectations that property will be equally inherited by all the siblings, they are naturally likely to feel aggrieved if this does not happen.

When one of the parents dies and the children agree to the remaining parent having the benefit of the property, then if the property is not given equally to all the siblings on the death of the surviving parent, grievances will arise as the following narrative shows.

The father died leaving behind the wife and children. He had a property, but he had not made a will. Therefore he died intestate.

In these circumstances, the inheri­tance would have to take place in accordance with the provisions of the law. Letters of administration would have been applied for and there would be one or more administrators of the estate.

Under the Distribution Act 1958, where a person dies intestate leaving a spouse and issue, the surviving spouse is by law entitled to one third and the children two thirds of the estate. Thus, where a person has a spouse and children, the entire estate goes to the immediate family and no one else.

These were the rights which came into existence when the father died. As the father did not make a will, it may be presumed that it was his intention, either expressly or by default, that his property should be inherited, in so far as the children were concerned, in equal shares.

This entitlement of one third to the wife suggests that the law considers that the wife, for all the role she has played in the family and for whatever she has done, should be entitled to this proportion.

However, when the father passed away, the children all agreed that the mother should continue to stay in the property as long as she lived. She should also continue to receive the rental from part of the property that was rented out. Now the question is, how was this to be achieved?

Whether under advice or without any advice, all the children decided that the property should be given to the mother. Accordingly, all agreed to the property being transferred to the mother. Their intention was that the mother could stay there and benefit from it.

However, when the mother passed away it transpired that she made a will and gave the property away in different proportions, and one of them received nothing. This caused the sibling who was left out, as well as those who received a smaller share, to feel aggrieved. But what can they do?

Though their rights existed at the time that the father passed away intestate, these were lost when all agreed to have the entire property transferred to the mother.

Thereafter, the mother became entitled to deal with the property as she wished. She could even have given away the entire property to one of the children!

What should have been done is that when the letters of administration were obtained, the property should have been distributed according to the Act, with a third of the property being transferred and registered in the wife’s name and two thirds in the children’s names.

In order to safeguard the mother, which was the intention of the children at all times, they could have entered into an agreement with her and among themselves to allow the mother to stay in the house and receive the income for her lifetime.

If this had been done, the mother would still have been at liberty to dispose of her one third share through a will in a manner she chose, but that is another matter.

However, the scenario is that the siblings waived their rights to their inheritance and gave it to their mother. This has changed the whole position from what it was at the time of the death of the father.

There are also cases of members of the older generation, where a will is made giving all the property to the children equally and yet the wife is protected.

This is done by providing in the will that the wife is to have the benefit of staying there as long as she lives, as well as to income from it. Upon her death, the property is to be distributed to the children or, for that matter, anyone else.

The difference in such a situation is that the wife has no say in giving any part of the property to the children, except that she would be entitled to stay in the property and enjoy the income.

Coming back to the situation discussed earlier, although the “unfavoured” siblings may feel aggrieved, this is the reality of the situation that was created. At that time, the children’s only thought may have been that the mother be assured of a roof over her head and the income.

Why this has happened could also be because, with some of the children spending more time with her, she may have become susceptible to be influenced by them to do what she did.

Or it could be that she may have grown so old that she was not able to understand what she was doing and therefore those in control or with influence over her could have dictated the contents of the will.

However, to prove such suspicions would be difficult. When issues of inheritance arise, many intricacies are involved. A lack of appreciation of certain aspects could lead to different end results.

Finally, it must be pointed out that the above discussions substantially relate to non-Muslims. This is because Muslims are governed by Syariah law where the entitlement to inheritance is fixed, though one third may be given away by a will.

Any comments or suggestions for points of discussion can be sent to [e-mail]. The views expressed here are entirely the writer’s own.